S.P v. D.M.P

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1946-09T3

S.P.,

Plaintiff-Respondent,

v.

D.M.P.,

Defendant-Appellant.

________________________________________________________________

March 9, 2011

 

Submitted February 15, 2011 - Decided

 

Before Judges Payne and Baxter.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1111-09.

 

Kiernan & Campbell, attorneys for appellant (Jean R. Campbell, on the brief).

 

Respondent has not filed a brief.

 

PER CURIAM

Defendant D.M.P. appeals from a November 17, 2009 Judgment of Divorce (JOD) that denied her request for alimony and for equitable distribution of the pension plan of her former husband, plaintiff S.P. The parties were married in 1985, and separated in 1990; however, plaintiff did not file his complaint for divorce until November 2008. We agree with defendant's argument that the judge committed reversible error by using the 1990 date of separation as the dispositive date for purposes of determining defendant's entitlement to alimony and equitable distribution. We also agree with defendant's argument that the judge's refusal to award her alimony improperly ignored the enormous disparity in the parties' income as well as defendant's extremely serious medical and psychiatric problems. We therefore reverse the portion of the JOD that denied such relief to defendant, and remand for further proceedings during which the Family Part shall reconsider the issues of alimony and equitable distribution with the year 2008 being deemed the date the marriage ended.

I.

Married in 1985, the parties separated in 1990. They have one child, a son born in the summer of 1986. Approximately two years after the parties' separation, defendant sought, and obtained, an order of child support, which required plaintiff to pay the sum of $469 every other week. Plaintiff was continuing to pay such child support at the time of the September 2009 divorce trial. A domestic violence complaint filed by plaintiff in 1995 was dismissed without the entry of a final restraining order. There were no court proceedings between the parties thereafter until plaintiff filed his complaint for divorce in November 2008.

At the time of the divorce, plaintiff was employed by the United States Postal Service (USPS), earning $51,338 in 2008. He is eligible for a retirement pension through his employer, from which he can expect to receive $875 per month. Plaintiff will also be eligible for Social Security retirement benefits in the amount of $1349 per month upon retirement.

While separated, plaintiff paid defendant $469 in child support payments, as required by the 1992 order. Plaintiff also supplied healthcare coverage to defendant and their son through his health insurance plan with the USPS. Plaintiff acknowledged providing considerable financial assistance to defendant during their separation. In 1998, by which time the parties had already been separated for approximately eight years, defendant received an eviction notice, and plaintiff paid $3500 to enable her to maintain her residence. Afterward, he continued paying $500 to $1000 for the next six months to a year for defendant's rent. In 2000, plaintiff gave defendant a vehicle to use, but the car was involved in an accident. In 2001, he bought her another vehicle as a replacement. When that car was subsequently involved in an accident, plaintiff continued to make payments on the car loan. Further, approximately two years before trial, plaintiff borrowed $12,000, and used the proceeds to pay for defendant's living expenses.

Defendant suffers from bipolar disorder, depression, anxiety disorder, schizophrenia and thyroid cancer. She was diagnosed with bipolar disorder as early as 2006, and, at the time of trial, was receiving Social Security disability payments in the amount of $1116 per month. She also receives medical coverage under Medicare Part B. Before collecting Social Security disability, defendant worked for nine years in the food stamp department of the Board of Social Services, but had not worked since 2000, due to her disabilities.

At the time of trial, defendant was living with the parties' son in an apartment in Newark, paying monthly rent of $783, subject to a $17 per month surcharge for air conditioning in the summer months. Defendant testified that she purchased all of her clothing at the Salvation Army, and had a balance in her checking account of $3. She had no savings. She was driving a nine-year-old car owned by her father. After an infestation of bed bugs caused her to discard all of the furniture and bedding in her apartment, she was forced to obtain mattresses for her and her son from a local charity because she could not afford to buy new ones. She found a sofa and a chair on the sidewalk about a block from her home, and two men helped her tie it to her car and move it into her apartment. When asked if she had any bedding and linens or any kitchen equipment, she answered, "not now." Defendant also explained that she had borrowed $350 from a friend and $149 from a rabbi to buy food.

Defendant was paying $100 per month for medication, and estimated that this cost would increase by $200 to $300 per month after the divorce. She also had outstanding bills of approximately $600 for medical costs not covered by either plaintiff's insurance plan or her own Medicare Part B, a Verizon bill in the amount of $1724, and was responsible for payment of the outstanding balance owed to the private school the parties' son attended while in high school.

The judge granted dual judgments of divorce but, as we have noted, denied defendant's request for equitable distribution of plaintiff's pension and her request for alimony. In an oral opinion, the judge noted that there was a considerable disparity in the parties' income, with plaintiff earning a net income of $43,000 per year and defendant receiving a monthly Social Security check of $1116, for an annual income of $13,392. The judge also recognized that defendant suffered from serious medical and psychiatric problems. Nonetheless, after finding that the operative date for determining the length of the marriage was the date of the parties' separation in 1990, not the date of the filing of the divorce complaint in 2008, the judge concluded that the marriage lasted for only five years, and was of such short duration that no alimony should be awarded to defendant.

On the issue of equitable distribution, the judge determined that defendant's equitable interest in plaintiff's USPS pension was so slight in 1990, when the marriage ended, as to render defendant's interest in the pension, for purposes of equitable distribution, de minimis. For that reason, the judge refused to grant defendant any equitable distribution of plaintiff's pension. The judge also declared the parties' son emancipated, finding that he had dropped out of college after his freshman year.

In concluding that 1990, rather than 2008, should be the date the marriage ended for purposes of alimony and equitable distribution, the judge specifically rejected defendant's argument under Brandenburg v. Brandenburg, 83 N.J. 198 (1980) that the date of the filing of the complaint for divorce is the date by which to judge the parties' respective rights concerning alimony and equitable distribution. Observing "that's not cut in stone," the judge cited Kruger v. Kruger, 73 N.J. 464 (1977), Smith v. Smith, 72 N.J. 350 (1977), and Grayer v. Grayer, 147 N.J. Super. 513 (App. Div. 1977).

In the course of his oral opinion, the judge found that because defendant's father was handling her finances, "he is clearly subsidizing his daughter in helping her financially." Defendant's attorney attempted, unsuccessfully, to correct the judge, stating that defendant's testimony did not indicate that defendant's father was "subsidizing her," but merely that her father paid her bills on her behalf with the money she received.

In the Supplemental Judgment of Divorce, the judge reiterated his earlier conclusion that defendant was not entitled to alimony or to the equitable distribution of plaintiff's pension. The judge concluded:

2. Alimony. Defendant s claim for alimony is denied based on the Court s findings that the parties have been separated since on or around 1990 and have not lived together as husband and wife for any significant time thereafter. The Court further found that notwithstanding the Defendant s status of being disabled and receiving Social Security/Disability, based on the Court s determination of the short-term of the parties marriage, the Court held that Plaintiff shall have no obligation to pay spousal support to the Defendant. . . .

 

3. Equitable Distribution. Based on the statutory factors regarding the distribution of property, the Court finds that the Plaintiff s pension was acquired only shortly before the time of the parties separation and therefore the marital share of same would be de minimus [sic] based on the Court s determination. Accordingly, the Court finds the Plaintiff shall have no obligation to pay any portion of his pension or retirement benefits to the Defendant.

 

On appeal, defendant argues that the judge misapplied the statutory factors pertaining to alimony and equitable distribution, and erroneously deemed the marriage to have ended in 1990.

II.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. However, a "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We turn first to the judge's refusal to award defendant a portion of plaintiff's USPS pension. Judges are required by N.J.S.A. 2A:34-23(h) to "effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage . . . ." (emphasis added).

The term "during the marriage" has been construed to mean the property acquired between the date of marriage and the filing date of the complaint for divorce. Painter v. Painter, 65 N.J. 196, 217-18 (1974). This rule is subject to few exceptions, and will be modified only where another end date can be definitively ascertained. For example, in DiGiacomo v. DiGiacomo, 80 N.J. 155, 159 (1979), the Supreme Court held that the date of an oral agreement, followed by the actual division of property between the parties, was the marriage end date. See also Smith, supra, 72 N.J. at 361-62 (holding the date of the parties' written separation agreement was incontrovertible evidence of the marriage's end date); Genovese v. Genovese, 392 N.J. Super. 215, 226 (App. Div. 2007) (holding the filing of a divorce complaint in another state, with a divorce judgment that was later vacated, with remarriage by one of the parties to be "incontrovertible evidence," of the marriage end date). Alternatively, a lengthy separation accompanied by the division of some assets and the payment of support was insufficient to support a conclusion that the marriage ended prior to filing the divorce complaint. Brandenburg, supra, 83 N.J. at 209.

Here, the trial judge erred when he interpreted the applicable case law and adopted the date of separation as the dispositive date for the equitable distribution of the marital property. The judge relied on Kruger, supra, where the Supreme Court considered the husband's military pension. 73 N.J. at 466. In Kruger, the issue was whether the pension contributions made before the marriage should have been included as a marital asset. Ibid. The Supreme Court approved a division of the husband's pension in such a fashion as to exempt from equitable distribution the contributions the husband made prior to the marriage. Ibid. Thus, upon divorce, only the portion of the pension that was acquired during the marriage was subject to equitable distribution. Ibid. This is distinguishable from the present appeal, because here plaintiff's pension was not acquired before the marriage. Plaintiff began contributing to his pension only after the parties were married, and contributed through the entire marriage. Thus, the judge's reliance on Kruger was error.

The trial judge also relied on Smith, supra, which carved out an exception to the divorce complaint date when the parties had a written separation agreement. Smith, supra, 72 N.J. at 358. The Supreme Court determined that such a written agreement "would appear to be incontrovertible evidence that the marital enterprise is no longer viable," and therefore the date of execution of the written agreement was the date to be used for purposes of determining and valuing assets eligible for equitable distribution. Id. at 361-62. The judge's reliance on Smith was error, because here the parties had no written separation agreement that could be used to determine and value assets.

Last, the judge relied upon Grayer, supra, which involved a marriage of six and one-half years, but because the trial court did not make adequate findings, the matter was remanded. 147 N.J. Super. at 516. Grayer did not involve a long-term marriage with a long separation; rather it was a short-term marriage. Further, our opinion in Grayer never addressed the question of whether the date of separation is the applicable date for purposes of equitable distribution of marital property.

In contrast, Brandenburg, supra, is directly on point and is controlling. 83 N.J. 198. In Brandenburg, the parties were married thirty-two years, but were separated for the last ten years of their marriage. Id. at 201-02. The trial court equitably distributed all of the assets from 1944, the date of the marriage, until 1976, the date the complaint was filed. Id. at 202. The husband appealed, arguing that the parties' 1966 oral agreement on division of property should have been used to divide the marital property, not the date the complaint was filed. Id. at 202. We agreed with the husband's argument, but the Supreme Court later reversed, holding that the date of an oral agreement, followed only by partial division of assets, was not the determinative date for purposes of equitable distribution. Id. at 203-04.

The Court observed in Brandenburg that the meaning of "during the marriage" was difficult in its application. Id. at 204. The Court held that the rule from Painter was controlling, which adopted the filing date of the complaint as the end of the marriage. Id. at 205 (citing Painter, supra, 65 N.J. at 218). The Court then recognized the exception carved out in Smith, where the parties, "enter[] into a formal separation agreement accompanied by physical separation." Id. at 205 (citing Smith, supra, 72 N.J. at 361). Another exception was carved out in DiGiacomo, supra, 80 N.J. at 159, where the Court held that when the parties entered into an oral agreement, and actually divided their marital assets, any assets acquired subsequent were not eligible for equitable distribution. Brandenburg, supra, 83 N.J. at 206.

The Court then cautioned against using the separation date as an indicator that the marriage has ended. Id. at 207. If courts adopted the separation date:

[c]ase-by-case searches for the elusive point when a marriage disintegrates would be necessary. Trial courts would be embroiled in analyzing the entire course of events during the period of separation. Any contact between the spouses would require scrutiny. Much of the evidence would come from the parties themselves; credibility and corroboration would be persistent problems. Any examination of the nature and meaning of the parties' separation would require extraordinary amounts of judicial time and energy. Because of the character of the evidence which would be involved, the resulting adjudications would be neither reliable nor consistent.

 

[(Ibid.)]

Thus, the Supreme Court held in Brandenburg that absent evidence of a written agreement, or a complete division of the marital assets pursuant to an oral agreement, the trial court should use the date the divorce complaint was filed as the date the marriage ended. Id. at 210-11. Here, neither of those exceptions is present. Therefore, the applicable date for purposes of equitable distribution was November 1, 2008, the date plaintiff filed for divorce, not 1990, the date the parties separated. The judge erred when he used 1990 as the controlling date.

Because of that error, the judge wrongly concluded that defendant's interest in plaintiff's pension was de minimis, and unworthy of distribution. We therefore reverse that determination, and remand for equitable distribution of plaintiff's pension in light of the factors set forth in N.J.S.A. 2A:34-23.1.

III.

We next address the denial of defendant's request for alimony. A reviewing court will not disturb a trial judge's award of alimony, or a refusal to award alimony, absent an abuse of discretion. Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as modified, 183 N.J. 290 (2005). N.J.S.A. 2A:34-23(b), sets forth the factors to be applied when determining eligibility for alimony, and the amount of any such award. Ibid. The court should consider the following statutory factors:

(1) The actual need and ability of the parties to pay;

 

(2) The duration of the marriage or civil union;

 

(3) The age, physical and emotional health of the parties;

 

(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;

 

(5) The earning capacities, educational levels, vocational skills, and employability of the parties;

 

(6) The length of absence from the job market of the party seeking maintenance;

 

(7) The parental responsibilities for the children;

 

(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, . . .;

 

(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;

 

(10) The equitable distribution of property ordered . . . ;

 

(11) The income available to either party through investment of any assets held by that party;

 

(12) The tax treatment and consequences to both parties of any alimony award, . . . ;

 

(13) Any other factors which the court may deem relevant.

 

[N.J.S.A. 2A:34-23(b).]

 

The judge applied the factors set forth in N.J.S.A. 2A:34-23(b), but ultimately denied defendant's alimony request based on the "viability of the marriage," which he determined to be only four years. The judge mentioned four cases to support the viability of marriage standard, but did not explain why those cases were applicable. He noted that in Globman v. Globman, 158 N.J. Super. 338 (App. Div.), certif. denied, 77 N.J. 493 (1978), "there was a 10 year marriage with a 4 year separation," and in Esposito v. Esposito, 158 N.J. Super. 285 (App. Div. 1978), "there was a 20 year marriage with a 2 year separation." The judge also mentioned, but did not discuss, Pascale v. Pascale, 140 N.J. 583 (1995), and Grayer, supra, 147 N.J. Super. 513.

In Globman, supra, the parties were married for eleven years, but were separated after six years of marriage, when the wife required periods of hospitalization in Trenton Psychiatric Hospital. 158 N.J. Super. at 340-41. When determining alimony, we noted that while separated for the four and one-half year period, the husband only provided the wife with $100 for support, while making charitable contributions in an amount exceeding $11,000. Id. at 344. In light of that evidence, we remanded to the trial court to determine an alimony award "commensurate with the needs, capacities and obligations of the parties." Ibid. Thus, as required by Globman, when determining alimony, the judge should have considered not only the period of time when the parties were married and living together, but also the period of separation. By ignoring the period of separation, the judge wrongly evaluated defendant's alimony request as being based on only a four-year marriage, thereby misapplying N.J.S.A. 2A:34-23(b)(2), "[t]he duration of the marriage."

When applying the remaining statutory factors, the judge considered the physical health of the parties, and found that plaintiff was in good health, and that defendant's health problems did not begin until "after the parties were separated." This finding trivialized the extent of defendant's debilitating physical and psychiatric problems. The judge also noted that there was no evidence regarding the standard of living during the marriage, which he said ended nineteen years ago, thereby wrongly ignoring defendant's testimony that she had been impoverished ever since 2000 when she stopped working. Moreover, the judge observed there was no testimony on defendant's education, background, training or employment skills "during that four-year period" of marriage. These findings relate to the judge's determination that defendant was not entitled to alimony because the marriage was short-term, which, as we have already discussed, was an erroneous conclusion.

Applying the statutory factors of N.J.S.A. 2A:34-23(b) to the record, we conclude that defendant was entitled to alimony. Plaintiff's income from the USPS was significantly higher than defendant's income from Social Security. The parties were married in 1985, and the complaint for divorce was not filed until 2008. Therefore, the parties were married for twenty-three years, which was not a short-term marriage.

As to the physical health of the parties, defendant suffers from bipolar disorder, depression, anxiety disorder, schizophrenia and thyroid cancer. She has outstanding medical bills, and her monthly cost for prescriptions was expected to increase from $100 to approximately $300-$400 once she was no longer covered under plaintiff's health insurance plan.

The parties presented evidence concerning their current standards of living, which included separate residences; however, the record shows that defendant relied heavily on plaintiff for periodic financial support. Ten years before plaintiff filed for divorce, he paid $3500 because defendant was being evicted from her apartment, and then continued making rent payments for another six months to a year. Approximately two years before the divorce, plaintiff borrowed $12,000, and used the money to help defendant and the parties' son pay their living expenses. He also provided defendant with two vehicles.

Defendant has been unable to earn income ever since she became disabled. The record establishes she is not employable, and that no education or training is likely to enable her to become employed. In contrast, plaintiff remained steadily employed for more than twenty years. Moreover, he has a pension through the USPS, as well as life insurance and a bank account, and will be eligible to draw on his pension and Social Security upon retirement.

In light of the evidence supporting the statutory factors set forth in N.J.S.A. 2A:34-23(b), defendant established an entitlement to permanent alimony. The judge mistakenly exercised his discretion when he held otherwise. We reverse the denial of alimony, and remand for a determination of the amount of alimony to be awarded. The judge who presided over the trial has since retired. The judge to whom this matter is assigned on remand shall have the discretion, when determining the amount of alimony to be awarded, to supplement the record with testimony concerning the current status of the parties.

Reversed and remanded.